Ms Perry, a part-time midwife, was employed by Imperial College Health Care NHS Trust. She was contracted to work 19 hours a week for Imperial, doing home visits in the community, travelling between patients by bicycle. She also had a second part-time job, working up to six hours, one evening a week, for Ealing Primary Care Trust as a family planning nurse, based near her home. There was no overlap in her working hours for the two jobs, which did not clash in any way.

During 2006 she developed a chronic knee problem and was eventually unable to do her mobile job for Imperial, although she remained fit enough to do her desk-bound family planning job. She went off sick from Imperial, which eventually found out, accusing her of fraudulently claiming sick pay while working for another employer.

Despite a letter from her GP explaining that she was unfit for the mobile role, but still fit for the desk-based job, she was dismissed for gross misconduct. When she appealed, Imperial changed its reason for the dismissal, relying on a clause in her contract which banned her from taking on a second job without its permission.

The EAT accepted that she was contractually obliged to notify Imperial about her second job, and that failing to do so was a breach of the employment contract. But it also pointed out that she was simply not under any contractual obligation, while off sick, to keep the Trust informed as to her condition so as to help it decide whether she could be redeployed elsewhere.

It concluded that no reasonable employer would have dismissed Perry in these circumstances, but reduced her compensation by 30% for failing to tell Imperial about her second job.

Perry v Imperial College Healthcare NHS Trust UKEAT/0473/10/JOJ

www.bailii.org/uk/cases/UKEAT/2011/0473_10_2207.html